Native Title Legislation Amendment (2021 Measures No. 1) Regulations 2021
I, General the Honourable David Hurley AC DSC (Retd), Governor‑General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following regulations.
David Hurley
Governor‑General
By His Excellency’s Command
Amanda Stoker
Assistant Minister to the Attorney‑General
Parliamentary Secretary to the Attorney‑General
Contents
2 Commencement
3 Authority
4 Schedules
Schedule 1—Amendments
Native Title (Federal Court) Regulations 1998
Native Title (Indigenous Land Use Agreements) Regulations 1999
Native Title (Tribunal) Regulations 1993
This instrument is the Native Title Legislation Amendment (2021 Measures No. 1) Regulations 2021.
(1) Each provision of this instrument specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
Commencement information | ||
Column 1 | Column 2 | Column 3 |
Provisions | Commencement | Date/Details |
1. The whole of this instrument | Immediately after the commencement of the Registered Native Title Bodies Corporate Legislation Amendment Regulations 2021. | 25 March 2021 |
Note: This table relates only to the provisions of this instrument as originally made. It will not be amended to deal with any later amendments of this instrument.
(2) Any information in column 3 of the table is not part of this instrument. Information may be inserted in this column, or information in it may be edited, in any published version of this instrument.
This instrument is made under the Native Title Act 1993.
Each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.
Native Title (Federal Court) Regulations 1998
1 After regulation 6
Insert:
Forms 1, 3 and 4, as inserted by the Native Title Legislation Amendment (2021 Measures No. 1) Regulations 2021, apply in relation to any application made after the commencement of Schedule 1 to that instrument.
2 Schedule (Form 1)
Repeal the form, substitute:
Form 1—Native title determination application—claimant application
Note: See paragraph 5(1)(a).
Native Title Act 1993
The application of [name of applicant(s)]
Note 1: This form is to be used for an application mentioned in subsection 61(1) of the Act for a determination of native title in relation to an area for which there is no approved determination of native title.
Note 2: Section 62 of the Act requires this application to be accompanied by an affidavit sworn by the applicant stating the following matters:
(a) that the applicant believes that the native title rights and interests claimed by the native title group have not been extinguished in relation to any part of the area covered by the application;
(b) that the applicant believes that none of the area covered by the application is also covered by an approved determination of native title;
(c) that the applicant believes that all of the statements made in the application are true;
(d) that the applicant is authorised by all the persons in the native title claim group to make the application and to deal with matters arising in relation to it;
(e) the details of the process of decision‑making complied with in authorising the applicant to make the application and to deal with matters arising in relation to it;
(f) if there are no conditions under section 251BA of the Act on the authority that relate to the making of the application—that there are no such conditions;
(g) if there are any conditions under section 251BA of the Act on the authority that relate to the making of the application—that the conditions have been satisfied and how the conditions have been satisfied.
1. The applicant applies for a determination of native title under subsection 61(1) of the Native Title Act 1993.
2. The applicant is entitled to make this application as [capacity in which the applicant claims to be entitled to make the application, e.g. a person authorised by the native title claim group to make the native title determination application: see Act, s 61(1)].
3. The schedules to this application contain the following information:
Schedule A [see Act, s 61]
The names (including Aboriginal names) of the persons (the native title claim group) on whose behalf the application is made or a sufficiently clear description of the persons so that it can be ascertained whether any particular person is 1 of those persons.
Schedule B [see Act, s 62]
Information identifying the boundaries of:
(a) the area covered by the application; and
(b) any areas within those boundaries that are not covered by the application.
Note: This information must be included as well as the map mentioned in Schedule C.
Schedule C [see Act, s 62]
A map showing the boundaries of the area covered by the application.
Schedule D [see Act, s 62]
Details and results of all searches carried out by or on behalf of the native title claim group to determine the existence of any non‑native title rights and interests in relation to the land or waters in the area covered by the application.
Schedule E [see Act, s 62]
A description of the native title rights and interests claimed in relation to particular land or waters (including any activities in exercise of those rights and interests). The description must not consist only of a statement to the effect that the native title rights and interests are all native title rights and interests that may exist, or that have not been extinguished, at law.
Schedule F [see Act, s 62]
A general description of the factual basis on which it is asserted that the native title rights and interests claimed exist and in particular that:
(a) the native title claim group has, and the predecessors of those persons had, an association with the area; and
(b) there exist traditional laws and customs that give rise to the claimed native title; and
(c) the native title claim group has continued to hold the native title in accordance with those traditional laws and customs.
Schedule G [see Act, s 62]
Details of any activities in relation to the land or waters currently carried on by the native title claim group.
Schedule H [see Act, s 62]
Details of any other applications to the High Court, Federal Court or a recognised State/Territory body, of which the applicant is aware, that have been made in relation to the whole or a part of the area covered by the application and that seek a determination of native title or a determination of compensation in relation to native title.
Schedule HA [see Act, s 62]
Details of any notifications under paragraph 24MD(6B)(c) of the Act, of which the applicant is aware, that have been given and that relate to the whole or part of the area.
Schedule I [see Act, s 62]
Details of any notices under section 29 of the Act (or under a corresponding provision of a law of a State or Territory), of which the applicant is aware, that have been given and that relate to the whole or a part of the area.
Schedule IA [see Act, s 62]
Details of any conditions under section 251BA of the Act on the authority of the applicant to make the application and to deal with matters arising in relation to it.
Schedule J
A draft of the order to be sought if the application is unopposed.
Schedule K
The name of each representative Aboriginal/Torres Strait Islander body for the area covered by the application.
Schedule L [see Act, ss 47, 47A, 47B, 47C, 61A and 62]
(1) For the area covered by the application, details of:
(a) any area for which a pastoral lease is held by or on behalf of the members of the native title claim group; and
(b) any area leased, held or reserved for the benefit of Aboriginal peoples or Torres Strait Islanders that is occupied by or on behalf of the members of the native title claim group; and
(c) any vacant crown land occupied by the members of the native title claim group; and
(d) any area in relation to which the operation of section 47C of the Act (national parks etc.) has been agreed to in writing in accordance with paragraph 47C(1)(b) of the Act; and
(e) any area mentioned in paragraph (a), (b), (c) or (d) over which the extinguishment of native title is required by section 47, 47A, 47B or 47C of the Act to be disregarded.
(2) If the operation of section 47C of the Act (national parks etc.) has been agreed to in writing in accordance with paragraph 47C(1)(b) of the Act in relation to the whole or any part of the area covered by the application, a copy of the agreement and, if there is an agreement under subsection 47C(5) of the Act, that agreement.
[The following items are not required, but will be relevant when the Native Title Registrar considers the claim for registration under section 190A of the Act.]
Schedule M [see Act, s 62]
Details of any traditional physical connection with any of the land or waters covered by the application by any member of the native title claim group.
Schedule N [see Act, s 62]
Details of the circumstances in which any member of the native title claim group has been prevented from gaining access to any of the land or waters covered by the application.
Schedule O [see Act, s 190C]
Details of the membership of the applicant or any member of the native title claim group in a native title claim group for any other application that has been made in relation to the whole or part of the area covered by this application.
Schedule P [see Act, s 190B]
Details of any claim by the native title claim group of exclusive possession of all or part of an offshore place.
Schedule Q [see Act, s 190B]
Details of any claim by the native title claim group of ownership of minerals, petroleum or gas wholly owned by the Crown.
Schedule R [see Act, s 190C]
(1) If the application has been certified by each representative Aboriginal/Torres Strait Islander body, a copy of the certificate.
(2) If the application has not been certified by each representative Aboriginal/Torres Strait Islander body:
(a) a statement that the applicant is a member of the native title claim group and is authorised to make the application, and deal with matters arising in relation to it, by all the other persons in the native title claim group; and
(b) a statement that either:
(i) there are no conditions under section 251BA of the Act on the authority that relate to the making of the application; or
(ii) any conditions under section 251BA of the Act on the authority that relate to the making of the application have been satisfied; and
(c) the grounds on which the Registrar should consider that the statements mentioned in paragraph (a) and, if applicable, subparagraph (b)(ii) are correct.
Note: For the meaning of authorise, see section 251B of the Act.
Schedule S [see Act, s 64]
If the application is an amended application, details of the difference between this application and the original application.
Schedule T
Any other relevant information that the applicant wants to provide.
Date:
[Signed by applicant or applicant’s solicitor]
This application is filed by [name], whose address for service is [insert address].
This application is filed for [name]. [Delete if applicant is unrepresented.]
The applicant’s address is [place of residence or business].
C. Email address for notices other than in relation to this application
The applicant consents to all notices under the Act (including future act notices) being given to the applicant by email to the email address specified in Part B.
[Delete Part C if the applicant does not consent, or does not provide an email address for service.]
3 Schedule (Forms 3 and 4)
Repeal the forms, substitute:
Form 3—Revised native title determination application
Note: See paragraph 5(1)(c).
Native Title Act 1993
The application of [name of applicant]
Note: This form is to be used for an application, as mentioned in subsection 61(1) of the Act, for revocation or variation of an approved determination of native title, on the grounds set out in subsection 13(5) of the Act.
1. The applicant applies for the revocation [or variation] of an approved determination of native title.
2. The applicant is entitled to make this application as [capacity in which the applicant claims to be entitled to make the application, e.g. the registered native title body corporate: see Act, s 61(1)].
3. The schedules to this application contain the following information:
Schedule A
Information identifying the boundaries of:
(a) the area covered by the application; and
(b) any areas within those boundaries that are not covered by the application.
Note: This information must be included as well as the map mentioned in Schedule B.
Schedule B
A map showing the boundaries of the area covered by the application.
Schedule C
Details and results of all searches carried out to determine the existence of any non‑native title rights and interests in relation to the land or waters in the area covered by the application.
Schedule D
The name of each representative Aboriginal/Torres Strait Islander body for the area covered by the application.
Schedule E
A copy of the approved native title determination.
Schedule F [see Act, s 13]
Details of events (if any) that have taken place since the approved determination of native title was made which make that determination no longer correct.
Schedule G [see Act, s 13]
Details of the grounds (if any) for varying or revoking the determination in the interests of justice.
Schedule GA [see Act, ss 13, 47C and 62]
If the determination covers an area in relation to which the operation of section 47C of the Act (national parks etc.) has been agreed to in writing in accordance with paragraph 47C(1)(b) of the Act, a copy of the agreement and, if there is an agreement under subsection 47C(5) of the Act, that agreement.
Schedule H
For an application for variation of an approved determination of native title, a draft of the order sought.
Schedule I
Any other relevant information that the applicant wants to provide.
Date:
[Signed by applicant or applicant’s solicitor]
This application is filed by [name], whose address for service is [insert address].
This application is filed for [name]. [Delete if applicant is unrepresented.]
The applicant’s address is [if the applicant is an individual, place of residence or business; if the applicant is a corporation, principal place of business].
Form 4—Compensation application
Note: See paragraph 5(1)(d).
Native Title Act 1993
The application of [name of applicant(s)]
Note 1: This form is to be used for an application, as mentioned in subsection 61(1) of the Act, for a determination of compensation.
Note 2: Section 62 of the Act requires an application to be accompanied by an affidavit sworn by the applicant stating the following matters:
(a) that the applicant believes that native title rights and interests exist or have existed in relation to the area covered by the application;
(b) that the applicant believes that all of the statements made in the application are true;
(c) if the application is authorised by a compensation claim group—that the applicant is authorised by all the persons in the compensation claim group to make the application and to deal with matters arising in relation to it;
(d) if the application is authorised by a compensation claim group—the details of the process of decision‑making complied with in authorising the applicant to make the application and to deal with matters arising in relation to it;
(e) if the application is authorised by a compensation claim group and there are no conditions under section 251BA of the Act on the authority that relate to the making of the application—that there are no such conditions;
(f) if the application is authorised by a compensation claim group and there are any conditions under section 251BA of the Act on the authority that relate to the making of the application—that the conditions have been satisfied and how the conditions have been satisfied;
(g) if the application is made by a registered native title body corporate—either that the applicant holds (or is an agent prescribed body corporate in relation to) the native title rights and interests, or that the area is within the external boundary of the area of land or waters covered by an approved determination of native title under which the applicant holds (or is an agent prescribed body corporate in relation to) native title rights and interests.
1. The applicant applies for a determination of compensation under subsection 61(1) of the Native Title Act 1993.
2. The applicant is entitled to make this application as [capacity in which the applicant claims to be entitled to make the application, e.g. a person authorised by the compensation claim group to make the native title determination application: see Act, s 61(1)].
3. The schedules to this application contain the following information:
Schedule A [see Act, s 61]
Either:
(a) the names (including Aboriginal names) of the persons (the compensation claim group) on whose behalf the application is made or a sufficiently clear description of the persons so that it can be ascertained whether any particular person is 1 of those persons; or
(b) the name of the registered native title body corporate.
Schedule B [see Act, s 62]
Information identifying the boundaries of:
(a) the area covered by the application; and
(b) any areas within those boundaries that are not covered by the application.
Note: This information must be included as well as the map mentioned in Schedule C.
Schedule C [see Act, s 62]
A map showing the boundaries of the area covered by the application.
Schedule D [see Act, s 62]
Details and results of all searches carried out by or on behalf of the native title claim group to determine the existence of any non‑native title rights and interests in relation to the land or waters in the area covered by the application.
Schedule E [see Act, s 62]
A description of the native title rights and interests in relation to particular land or waters (including any activities in exercise of those rights and interests) for which compensation is claimed. The description must not merely consist of a statement to the effect that the native title rights and interests are all native title rights and interests that existed, or have not been extinguished, at law.
Schedule F
The name of each representative Aboriginal/Torres Strait Islander body for the area covered by the application.
Schedule G [see Act, s 62]
A general description of the native title rights and interests for which compensation is claimed and, in particular, the factual basis on which it is asserted that:
(a) the compensation claim group, and the predecessors of those persons, had an association with the area; and
(b) there existed traditional laws and customs that give rise to the claimed native title; and
(c) the compensation claim group had continued to hold the native title in accordance with those traditional laws and customs.
Schedule H [see Act, s 62]
Details of activities in relation to the land or waters that are or were carried on by the compensation claim group.
Schedule I
Details of the act which it is claimed extinguished or affected native title rights and interests for which compensation is claimed, including:
(a) the government or other person that did the act and whether the act has been validated; and
(b) if the act has been validated, how this was done; and
(c) copies of:
(i) all searches of official title registers (such as the title register of crown lands and the land title register of the relevant State or Territory); and
(ii) all searches conducted with public bodies and authorities;
that identify existing or expired non‑native title rights and interests in relation to the land or waters covered by the compensation application.
Schedule J
Details of the basis for the compensation application, such as the provision of the Act that deals with the compensation entitlement.
Schedule K [see Act, s 62]
Details of any other applications to the High Court, Federal Court or a recognised State/Territory body, of which the applicant is aware, that have been made in relation to the whole or a part of the area covered by the application and that seek a determination of native title or a determination of compensation in relation to native title.
Schedule KA [see Act, s 62]
Details of any notifications under paragraph 24MD(6B)(c) of the Act, of which the applicant is aware, that have been given and that relate to the whole or part of the area.
Schedule L [see Act, s 62]
Details of any notices under section 29 of the Act (or under a corresponding provision of a law of a State or Territory), of which the applicant is aware, that have been given and that relate to the whole or a part of the area.
Schedule LA [see Act, s 62]
Details of any conditions under section 251BA of the Act on the authority of the applicant to make the application and to deal with matters arising in relation to it.
Schedule M
Details of any compensation received by the applicant or to which the applicant may be entitled under any agreement or award because of the act or a related act.
Schedule N [see Act, s 79]
Whether the applicant is claiming non‑monetary compensation and, if so, the nature of the non‑monetary compensation claimed.
[The following items are not required, but may be included.]
Schedule O [see Act, s 62]
Details of any traditional physical connection with any of the land or waters covered by the application by any member of the compensation claim group.
Schedule P [see Act, s 62]
Details of the circumstances in which any member of the compensation claim group has been prevented from gaining access to any of the land or waters covered by the application.
Schedule Q
Any other relevant information that the applicant wants to provide.
Date:
[Signed by applicant or applicant’s solicitor]
This application is filed by [name], whose address for service is [insert address].
This application is filed for [name]. [Delete if applicant is unrepresented.]
The applicant’s address is [if the applicant is an individual, place of residence or business; if the applicant is a corporation, principal place of business].
C. Email address for notices other than in relation to this application
The applicant consents to all notices under the Act (including future act notices) being given to the applicant by email to the email address specified in Part B.
[Delete Part C if the applicant is a registered native title body corporate, or does not consent, or does not provide an email address for service.]
Native Title (Indigenous Land Use Agreements) Regulations 1999
4 At the end of subregulation 6(3)
Add:
; (e) whether or not there is any other written agreement made between some or all of the parties to the agreement in connection with the doing of an act to which the agreement relates.
5 At the end of subregulations 7(3) and 8(3)
Add:
; (e) details of any conditions under section 251BA of the Act on the authority to make the agreement;
(f) whether or not there is any other written agreement made between some or all of the parties to the agreement in connection with the doing of an act to which the agreement relates.
6 In the appropriate position in Part 3
Insert:
The amendments of these Regulations made by the Native Title Legislation Amendment (2021 Measures No. 1) Regulations 2021 apply in relation to any application made after the commencement of Schedule 1 to that instrument.
Native Title (Tribunal) Regulations 1993
7 Subregulation 3(1) (at the end of the definition of lodge an address for service)
Add:
Note: The address may include a physical address, a postal address and an email address.
8 Paragraph 8(d)
Omit “day‑to‑day living”.
9 Regulation 10 (heading)
Omit “in relation to an application”, substitute “to an inquiry in relation to a special matter”.
10 After regulation 12
Insert:
12A Contact details in relation to right to negotiate applications
A party to an inquiry in relation to a right to negotiate application must, no later than 7 days after being given notice of the application, give to the Registrar notice in writing of the following information:
(a) a physical or postal address to which documents for the party may be sent;
(b) the email address (if any) to which documents for the party may be sent;
(c) the party’s telephone number (if any).
11 Regulation 13 (heading)
Omit “documents”, substitute “summons”.
12 Subregulation 13(4)
Omit “address for service, a document may be served on the person by handing a copy of the document to any person at that address”, substitute “address for service that includes a physical address, a document may be served on the person by handing a copy of the document to any person at that physical address”.
13 Subregulation 13(5)
Omit “A document may be served on an individual who has not lodged an address for service at his or her”, substitute “If an individual has not lodged an address for service that includes a physical address, a document may be served on the individual at the individual’s”.
14 Subregulation 13(6)
Omit “A document may be served on a corporation that has not lodged an address for service”, substitute “If a corporation has not lodged an address for service that includes a physical address, a document may be served on the corporation”.
15 Subregulation 13(7)
Omit “address for service or, if the person has not lodged an address for service”, substitute “physical or postal address for service or, if the person has not lodged an address for service that includes a physical or postal address”.
16 After regulation 13
Insert:
13A Service of a notice or document other than a summons
(1) A notice or other document that is required or permitted to be served on the Tribunal in relation to an inquiry by a party to the inquiry may be served by sending it by post or email to the address notified by the Tribunal to the party for that purpose.
(2) If a party to an inquiry has lodged an address for service, a notice or other document (other than a summons) that is required or permitted to be served on the party in relation to the inquiry by the Tribunal or another party to the inquiry may be served by sending it by post or email to that address.
(3) If a notice or other document is served by post in accordance with this regulation, it is taken to be served on the day on which it is posted.
(4) This regulation does not limit the ways in which a notice or other document may be served.
17 Regulation 18
Repeal the regulation, substitute:
(1) In this regulation:
amending instrument means the Native Title Legislation Amendment (2021 Measures No. 1) Regulations 2021.
commencement time means the commencement of Schedule 1 to the amending instrument.
(2) The amendments of regulations 8 and 10 and Schedule 1 made by the amending instrument apply in relation to any application made, or notice given to the Tribunal, after the commencement time.
(3) Regulation 12A, as inserted by the amending instrument, applies in relation to any right to negotiate application made after the commencement time.
(4) The amendments of regulation 13 made by the amending instrument apply in relation to any document served after the commencement time.
(5) Regulation 13A, as inserted by the amending instrument, applies in relation to any notice or other document served after the commencement time.
18 Schedule 1 (Forms 4 to 6)
Repeal the forms, substitute:
Form 4 Objection to inclusion in an expedited procedure application
(paragraph 4(1)(a))
Native Title Act 1993
OBJECTION TO INCLUSION IN AN EXPEDITED PROCEDURE APPLICATION
To:
The Native Title Registrar
National Native Title Tribunal
[BEFORE COMPLETING THIS FORM, YOU SHOULD READ THE EXPLANATORY MATERIAL RELATING TO THE USE OF THE FORM THAT IS AVAILABLE FROM THE REGISTRAR]
1. I, .................................................,1 object to the inclusion in a notice under section 29 of the Act of a statement that an act attracts the expedited procedure. The following information, and the documents referred to in this application, are provided for the purposes of the objection.
2. Address of the objector.
3. Address for service of the objector, including a physical address, email address (if any) and fax number (if any).
4. A statement of the preferred method for service on the objector.
5. Name and address of the representative of the objector (if any), including a physical address, telephone number, email address (if any) and fax number (if any).
6. Whether the objector is a registered native title body corporate or a registered native title claimant.
7. The government that issued the notice and the notification day specified in the notice.
8. A description of the act.
9. A statement why the objector believes that the proposed act is not an act attracting the expedited procedure that includes a statement of the likely impact of the act on community or social activities of the native title holders, areas or sites of particular significance and any land or waters concerned.
10. An outline of the type of evidence that the objector will produce to the National Native Title Tribunal.
11. Any other relevant information.
1 Name of objector, including any Aboriginal or Torres Strait Islander name
Form 5 Future act determination application
(paragraph 4(1)(b))
Native Title Act 1993
FUTURE ACT DETERMINATION APPLICATION
To:
The Native Title Registrar
National Native Title Tribunal
[BEFORE COMPLETING THIS FORM, AN APPLICANT IS ADVISED TO READ THE EXPLANATORY MATERIAL RELATING TO THE USE OF THE FORM THAT IS AVAILABLE FROM THE REGISTRAR]
1. I, ................................................,1 apply for a future act determination. The following information, and the documents referred to in this application, are provided for the purposes of the application.
2. Address of the applicant.
3. Address for service of the applicant, including a physical address, email address (if any) and fax number (if any).
4. A statement of the preferred method for service on the applicant.
5. Name and address of the representative of the applicant (if any), including a physical address, telephone number, email address (if any) and fax number (if any).
6. Registered native title body corporate (if any).
7. Registered native title claimant (if any).
8. The government that issued the notice and the notification day specified in the notice.
9. A description of the area of land concerned.
10. A description of the act.
11. A statement that the parties have not been able to reach agreement about the act.
12. A statement of the effect of the act on:
(a) the enjoyment by the native title parties of their registered native title rights and interests; and
(b) the way of life, culture and traditions of any of those parties; and
(c) the development of the social, cultural and economic structures of any of those parties; and
(d) the freedom of access by any of those parties to the land or waters concerned and their freedom to carry out rites, ceremonies or other activities of cultural significance on the land or waters in accordance with their traditions; and
(e) any area or site, on the land or waters concerned, of particular significance to the native title parties in accordance with their traditions.
13. An outline of the type of evidence that the applicant will produce to show the effect of the act on the area of land.
14. A statement of the nature and extent of:
(a) existing non‑native title rights and interests in relation to the land or waters concerned; and
(b) existing use of the land or waters concerned by persons other than the native title parties.
15. Any other relevant information.
1 Name of applicant, including any Aboriginal or Torres Strait Islander name
Form 6 Notice of intention to become a party to an inquiry in relation to a special matter
(regulation 10)
Native Title Act 1993
NOTICE OF INTENTION TO BECOME A PARTY TO AN INQUIRY IN RELATION TO A SPECIAL MATTER
To:
The Native Title Registrar
National Native Title Tribunal
I [or We] [name(s) and address(es) of person(s) giving notice] give notice that I [or we] want to be a party to the inquiry in relation to the following special matter:
[insert details of inquiry].
My [or Our] address for service is:
Signed:
Date: